Reconciling Conflicting Interests of Coastal and Riparian States: The Hard Case of Black Sea Straits

Abstract

There are two basic understandings of the regime of the Black Sea straits: the Black Sea straits as a legal regime and the Black Sea straits as a political regime [1]. The legal assessment of the Black Sea Straits regime requires determining what the existing regulation of the Straits is, how open the Straits are to international navigation, and if closed, whether there are real legal grounds for closing straits while the reference to the Black Sea Straits as a political regime allows for the possibility that straits may be closed for ensuring the security of Turkey and the Black Sea riparian states [1]. It is worth noting that arguments advanced by international legal scientists on the Black Sea straits as legal regime fundamentally differ from each other. Some scientists consider the Montreux Convention to be a major problem in the legal regulation of the Black Sea straits. They consider it necessary for Turkey to recognise the 1982 Convention on the Law of the Sea as a legally binding treaty [2]. Others argue that the main problem in regulating the Black Sea straits is the unilateral regulations adopted by Turkey (1994, 1998 and 2003 Regulations), which, in their view, violate the basic norms of the Montreux Convention, especially the regime of free passage through the straits established by this Convention [3; 4]. Another group of scientists believes that although the regime of the Black Sea straits is significantly restricted by Turkish unilateral regulations, these acts are aimed at protecting the marine environment and safety, and, therefore, the Turkish policy of regulating the Black Sea Straits is legally justified [1; 5]. This article is dedicated to the international legal regulation of navigation in the Black Sea Straits. The aim of the paper is to evaluate the current regime of the Black Sea Straits, the relationship and differences between the regime established by the Montreux Convention and the unilateral acts adopted by Turkey on the regulation of traffic in the Black Sea Straits, and to answer the question whether the urgent need to protect the natural environment and maritime safety entitles Turkey to restrict the regime established by the Montreux Convention. Thus, special attention will be drawn to the Montreux Convention, the rules and recommendations adopted by the International Maritime Organisation and the case law of international courts. In the view of the authors, the environmental and safety arguments put forward by Turkey for restricting navigation through the Black Sea Straits have two conceptual dimensions. First, these arguments are acceptable when it comes either to introducing norms related to the movement of ships to ensure safety of navigation or providing an obligation of notification to the Turkish authorities [6]. Another important thesis advanced by this article is that in each particular case, the regulations adopted by Turkey should be interpreted in the light of the recommendations made by the International Maritime Organisation. The main rationale of this argument is that under the existing regulations, Turkish authorities can still suspend the movement of ships in the straits for various reasons, some of which are quite vague. However, the article showcases that Turkey can, in case of pressing environmental need, when there is an urgent interest in the protection of the natural environment, act with the motive of protecting the natural environment, regardless of whether this action derives from a particular international treaty.